Johnson v. Sunshine Min. Co., Inc.

JOHNSON, Individually for her- Melessa and as an heir to the Estate of her

self husband, Johnson, L.

deceased James representative personal

also as for the Johnson, Melessa

Estate of James L.

Johnson, guardian as and mother of Johnson,

Christopher natural child of and the deceased

Melessa Johnson Johnson, Johnson, as L. Melessa

James

guardian and mother of Kevin John-

son, natural child of Melessa Johnson deceased L.

and the James

Christopher Johnson and Kevin John- themselves,

son, individually of the deceased James L. John-

children Estate, Plaintiff- and heirs to his

son

appellants, CO., INC., a Dela- MINING

SUNSHINE corporation doing business within

ware Idaho, Defendant-respon- State

dent.

No. 14786. of Idaho.

Supreme Court

June

BAKES, Justice. presents questions appli- This case cability constitutionality and the of I.C. grants 36-1604 which a limitation on a gratuitous landowner’s recrea- property. Summary users of his tional judgment granted to defendant Sun- Mining Company shine on the record which pleadings consists of the and affidavits. favorably plaintiffs, Viewed most to the presents the record in this case the follow- ing facts. 1946-47, Mining Company Sunshine built-up

constructed a dike near the border property, section of its known as a yard.” yard “stull The is used for timber preparation staging and a area to the mine. purpose of the dike was to control flooding Creek, nearby Big although portion dike, of a fork in the in the yard, northwest corner of the stull unloading logging once used for trucks. portion This of the dike had not been used by early Sunshine since the 1960’s. Sever- al playing affiants testified riding motorcycles yard in the stull and on the dike According from 1962 to 1980. affidavits, Sunshine’s employees were aware of the recreational use of Sunshine’s property and did not ask the affiants to leave. On one occasion in employ- 1972 an ee of Sunshine told one affiant that he play motorcycle could and ride a in the stull yard.1 Sunshine never received consid- eration for the recreational use of the stull yard.

In the fall of Sunshine excavated some of the fill material portion from the of the dike on the fork which had once been unloading logging used for trucks. The fill Chenoweth, Orofino, Nick Steven H. material contained sufficient mineralization Sackmann, Othello, Wash., plaintiffs-ap- mixing to merit processing it with oth- pellants. er ore. The process excavation was halted Cox, James P. Keane and Charles L.A. in the winter and was not resumed Brown, Keane, Boyd Gibler, Kellogg, & spring of 1980 because of a strike Sun- defendant-respondent. employees. shine’s The excavation left a 1. Plaintiffs offered by parties other affidavits for the affiant "had been told" other than pose showing consent on other occasions. Sunshine. See also Tristate National Bank v. However, these affidavits were not based on Gateway Storage Western "personal knowledge” required I.R.C.P. P.2d 409 56(e). Rather, they were based on what the ravine in approximately the dike fifteen 36-1604. Limitation deep twenty-five feet feet other landowner. —... side. “(b) Definitions. As used in this section: May

On James Johnson was sporting visited a friend a new three- Purposes’ includes, “3. ‘Recreational cycle. riding wheel his own mo- to, any but is not following limited torcycle, accompanied trying the friend in any Hunting, or combination thereof: cycle. out the new The two entered the fishing, swimming, boating, camping, pic- side, yard along stull on the north rode the nicking, hiking, pleasure driving, nature dike, and turned onto the fork of the dike study, skiing, sports, water winter heading toward the excavation. Johnson historical, viewing enjoying archeolog- or previously had ridden this route several ical, scenic, sites, or scientific when done lead, times. Johnson was in traveling the of the owner.” twenty thirty per miles hour. Some statutory language employed the slight brush and a rise in the dike obscured legislature, i.e., “includes, but is not limited approximately the view of the ravine until to,” quite makes it clear that eight the list was edge. to ten feet from the Johnson motorcycle, Motorcy- fell into the ravine his intended to be exhaustive. receiving injuries cling pleasure which caused his death is sufficiently similar to several months later. the activities listed to be included. The uncontradicted affidavit of Johnson’s com- heirs, plaintiff ap- Johnson’s estate and states, panion “On the date of James John- pellants, wrongful sued Sunshine for death. accident, May son’s Mr. Johnson granted summary judg- The district court pleasure and I riding cycles were our Sunshine, ruling ment to that I.C. 36- purposes only____ Neither constitutional, 1604 was and based it paid any Mr. Johnson or consideration to duty part there was no of care on the anyone right cycles for the to ride our Sunshine either to warn of or refrain from ____” creating dangerous We conclude that Johnson’s activi- prop- condition on its erty. appeal, argue purposes” On Johnsons that I.C. ties were “recreational within facts, inapplicable 36-1604 is meaning the of the statute. further that it is unconstitutional. Appellants argue next that Appellants argue first that ambiguous, statute is and that it should be apply 36-1604 does not to these facts. applying only “passive” construed as provides part: The statute negligence negligence, and not “active” 36-1604. Limitation creating the such as Sunshine’s act of cut landowner. —... ambiguity the dike. We find no

statute, any distinguishing nor basis for “passive” between so-called “active” and (c) Exempt Warning. An Owner negligence. specifically pro The statute owner of land owes no of care to premises entry vides that owner of land owes no keep safe for oth- “[a]n purposes, give duty keep premises for recreational or to of care to safe ers condition, warning dangerous entry by of a others for recreational structure, use, activity prem- on such give any warning or to persons entering for such condition, use, structure, ises activity on poses.” entering persons for such statute, stating purposes.” The after first dispute is “land” There is no dike that the owner owes no of care to a or that is the “owner” within the Sunshine entering purposes, for recreational Appellants contend statute’s definitions. activity, then refers to both use and nei motorcycling is not within the defini- of which could exist without the owner purposes” as it was ther tion of “recreational taking steps. defined at the time of the accident: some affirmative or active right” is ex- “fundamental arguing involve a Accordingly, is no basis for there penumbra pressly guaranteed or within ac- distinguishes between the statute i.e., Constitution, speech, freedom passive conduct.2 tive movement, religion, freedom of freedom of § 36- Appellants next contend that Accordingly, right privacy, etc. equal protection clause of 1604 violates inapplicable.4 scrutiny” standard “strict to the United the fourteenth amendment applicable only test is The “means-focus” analogous provi- Constitution and States if sions in the Idaho Constitution because persons, non-paying discriminatory

creates two classes of character of a chal- “the appar- another’s land and all lenged statutory recreational users of classification using land of another.3 is also a persons other and where there ent on its face relationship a lack of patent indication of analysis first equal protection An and the de- the classification between requires of the standard of a determination statute____” Lel- purpose clared recognizes possible Idaho three review. 373, at 659 v. 104 Idaho iefeld review, (1) scrutiny,” “strict standards of P.2d at 127. (2) “means-focus,” (3) the “rational ba a lack of patent is no indication of There Johnson, 104 E.g. v. sis” tests. Leliefeld classification and relationship between the Twin Falls 357, (1983); P.2d 111 Idaho 659 Therefore, the purpose. the declared Hamill, Hospital Bldg. Corp. v. Clinic & inapplicable. means-focus test Jones v. Leliefeld 19, P.2d 341 103 Idaho 644 Johnson, supra. v. Medicine, 97 Idaho 859, State Board of 555 (1976). a statute appropriate P.2d 399 The classification The test to review test, “suspect” classifica the rational basis case is not based on a such as this is “advances requires only that the statute religion, tion such as race or nor does allegedly slight rise in the a dis- cable due to a 2. The case cited to us which makes summary judg- "passive” negli- tinction between "active” and road. This Court affirmed gence negli- stating granted by involved common law action the trial court ment gence brought by v. Huyck a licensee. See LePoidevin a landowner was a to whom Wilson, 116, (1983). Wis.2d N.W.2d 111 330 555 "refrain from willful owed no other than to implied Even if we assume that Johnson had might injuries.” cause or wanton acts land, 36-1604(d)(2) 301, Co., § consent to enter the provides Mining supra Huyck at 612 v. Hecla legal the "licensee” is not status of P.2d 142. thereby upon him. conferred liability 1, 18, "36-1604. Limitation of of landown- Constitution which 4.Art. of the Idaho § states, er. — ... speedy remedy afforded [shall be] "[A] every injury person, property charac- of for ter,” "(d) Liability. Owner Assumes No An owner of rights guarantee law the common does not indirectly land who either invites or effect at the time the Constitution which were in permits charge any person to use such without rights." adopted, To hold as "fundamental for recreational otherwise thereby: law as "would be to hold that the common health, safety governs welfare and the 1890 "(2) legal person the status of Confer state and is unalterable of the citizens of this invitee or licensee to whom a of care is an Nothing without constitutional amendment. owed.” 1, 18, explicitly implicitly either in Art. legislative prohibits modification of common claim, even 3. We will discuss the constitutional no refer- law actions. Art. contains holding though questionable whether the it is law. The ence whatsoever to the common change would statute to be unconstitutional only adoption of the common law in this in view our recent similar result in this case XXI, jurisdiction is found in Art. Mining motorcycle Huyck v. Hecla case Those state constitution and I.C. Huyck, 101 Idaho clearly contemplate provisions the inherent traveling private plaintiff, who was on a modify power legislature com- many mining road which he had traveled on See, exceptions. State v. injured mon law with few motorcycle, was times before on his (1971) McCoy, P.2d 247 94 Idaho see a cable and reflector when he failed to Medicine, (dictum )." private Jones v. State Board across the which had been stretched at P.2d at 404. owner. His failure to observe 97 Idaho road legitimate legislative goals in a equal protection rational ed the clause of the four- fashion.” Brennan, teenth amendment.- Justice writ- Leliefeld ing court, nearly at 659 P.2d at 128. The for a encourage- unanimous stated: ment physical of recreation enhances the “But States required are not to convince well-being people, positive of Idaho’s has a the courts of the correctness of their economy, effect on Idaho’s legiti- legislative Rather, and is a judgments. ‘those legislative goal. legislature mate challenging legislative judgment has § 36-1604(a) legisla- stated in must convince the court that “the that the pose tive facts on which the encourage of this section is to classification is owners apparently reasonably based could not private of land to make land and water governmental conceivedto be true public areas available decisionmaker.’____ purposes by limiting their liability “Although persons entering parties challenging legislation toward thereon Equal under purposes.” may for such Protection Clause It is rational for the supporting introduce evidence legislature their claim to conclude that a limit on the irrational, [citing they that it is exposure non-pay- landowner’s cases] prevail long cannot so as ‘it is evident ing recreational users has influence on presented all the considerations landowner’s decision not to exclude legislature], and those of which we [the recreational users from his land. Subsec- notice, judicial ques- take (d) tion of the statute invites that result Id., tion is at least debatable.’ at providing that: S.Ct., at 784. Where there was evidence “36-1604. Limitation legislature reasonably sup- before the landowner. —... classification, porting litigants may the procure legislation not invalidation of the “(d) liability. No An Owner Assumes merely by tendering evidence in court owner of land who either or indi- legislature that the was mistaken.” 449 rectly permits invites or without 464, U.S. at 101 S.Ct. at 724.5 any person to use such for Applying expression this recent of the ra- thereby: does not standard, say tional basis we cannot any “1. Extend assurance that the legislative the stated determination that any purpose. are safe for “encourage the of will limitation upon person legal “2. Confer the private land to make land and owners of status an of invitee or licensee to whom public areas available to the water duty of care is owned. purposes,” charge for recreational responsibility “3. Assume for or incur According- legislative judgment. irrational any injury prop- ly, statute survives the rational basis erty caused an act of omission of such test. persons.” “by Finally, appellant argues that opinion The recent of the United regard to in granting immunity without Supreme States in Minnesota v. tent, Court Clo arbitrary 36-1604 is and unrea Co., 456, Creamery ver 449 U.S. 101 appellants their federal sonable and denies Leaf 715, (1981), provides 659 guarantees S.Ct. 66 L.Ed.2d of due and state constitutional that, expression process Appellants the current of the rational basis assert of law.” question forty involved the have similar recrea test. That case states which statutes, and Ohio prohibiting statute tional use all but Idaho whether Minnesota’s immunity granted plastic violat- exclude from the the sale of milk in containers suggested 661 P.2d argument School Dist. No. 104 Idaho it was that the 5. At oral However, (Ct.App.1983). "rational” element of the ration- the fair and sub- "reasonable" or 770 rationality might require requirement al basis test of the is an element stantial substantial,” legislative test, "fair and decision be test. not the rational basis “means-focus" in Packard v. Joint because of the decision

871 support finding presented would not by the landowner which statute conduct injure. intent to injure trespasser. an intent to reflects in Idaho the common law rule That was problems the trial are two There enactment of I.C. prior to the First, the reasoning process. stat- court’s Co., Mining 101 Idaho Huyck v. Hecla type provide of limited ute (1980) (“the duty de- P.2d 142 612 grants immunity it is abso- immunity. The tenants, fendants, as owners or trial court failed to Secondly, the lute. acts which or wanton from willful refrain issue of whether Sunshine’s address trespasser].”). injuries intentional, might conduct, arguably cause [to if not However, decide whether alleged need not in the com- we and wanton as willful a landowner exempts acts of plaint. Idaho statute trespass- injure a an intent to

which reflect does language of the statute clear whether a er, by appellants, and argued court’s assertion support the lower in the statute exemption such an lack of is, a codification of part, in most it violation of be an unconstitutional would relied law principles common defend- process. The activities due 101 Company, Mining Huyck v. Hecla excavating from the dike the ore ant (1980), where- P.2d Idaho does not rise in its smelter processing in, of an stated that this Court Mining Huyck v. Hecla that level. from willful was to refrain owner or tenant position at Accordingly, we take supra. injure tres- might wanton acts which or not I.C. on the issue of whether this time Indeed, seem that passers. it would absolve a landowner 36-1604 would codify the com- not to was intended statute injury to liability for willful or wanton derogate it. rather to mon law but case, trespasser. the facts of this On interpretation that canon of It is a settled legislative legitimate 36-1604 advances unambiguous, language is clear and therefore goals in a rational fashion and is plainly mean what held to it must be constitutional. Falls, City Twin expresses. Bastian (1983 P.2d 978 Court respondents. 104 Idaho Affirmed. Costs to Employment

Appeals); Knight v. Securi Idaho 398 P.2d ty Agency, 88 McFADDEN, DONALDSON, C.J., and J. State, 361, 393 Petersen v. tem., pro concur. the (1964). I not consider do P.2d 585 HUNTLEY, Justice, dissenting. § ambigu language 36-1604 to be of I.C. plainly any respect. The statute ous in impression as question of first This is a provides: validity of and constitutional to the effect § Limitation court 36-1604. the trial believe landowner. —... Min- granting respondent Sunshine erred summary judg- ing Company’s motion

ment. An (c) Exempt Warning. from Owner duty of care to of land owes no owner that I.C. 36- court assumed The trial entry by oth- premises safe for keep the law with merely the common codifies give or to purposes, recreational ers for duty owed landowners regard to the condition, warning of a con- trespassers and therefore occupants to structure, activity prem- use, on such exempt does not that the statute cluded entering for such persons to ises intentional whose liability landowners from added). poses. (Emphasis The low- injure another. acts or omissions exception forty having recreational only the states Of er court declared statutes, have statute Idaho and Ohio for in the use immunity provided the absolute, attempted grant unconditional act an intentional tortious would be sus- immunity injuries The to landowners occupier. landowner or part the Only one tained recreational users. the affidavits trial court observed scope has construed the the ing health, immu case the welfare and morals of the nity granted landowners under such stat people. authority, resting This with the utes. Surgery Plastic v. Associates legislature, subject question by is not Ratchford, App.3d 454 N.E.2d 7 Ohio courts, the except to determine whether that, Appeals the Ohio Court held authority has been exercised in an statute, (R.C. 1533.181(A)(1)) since under arbitrary manner, or unreasonable premises owner of owes no to a actually whether it accomplishes some keep recreational user safe purpose. real Barry at 369 P.2d use, entry an action could not be brought against the owner a recreation legislation clearly objec- The had a viable alleged al user for wanton misconduct. open pub- tive—to recreational lands to the stated, The Court “There can be no wanton However, wording lic. its is so broad as to misconduct unless one breaches a preclude passing it from constitutional which he owes to another. Since the stat § 36-1604, muster. Under matter expressly provides ute there is no use, condition, how inconsistent the struc- duty, there cannot be wanton misconduct.” use, activity ture or is with recreational By similarly granting Id. at 567.1 immuni liability. By owner is still free from ty intent, regard I.C. 36-1604 excluding intentional, immunity will- arbitrary and unreasonable and denies conduct, legislature ful or wanton has appellants, the wife and children of the licensed an owner to create unsafe condi- decedent, their federal and state constitu totally tions which are inconsistent with guarantees process tional due of law. By failing recreational use. to limit the process challenge A due will be success- fashion, immunity in legislature (1) ful preliminary showing there ais promotion has elevated cognizable property that the interest is a simply use over life itself. It is not ration- (2) legislation interest and chal- say al to that the demands of recreation lenged relationship bear rational pressing superior are so as to rise to a preservation promotion regard proper safety for the of human life. public welfare. Jones State Board of Hence, the enactment of I.C. Medicine, 97 Idaho 555 P.2d 199 proper was not exercise of the state’s Koehler, Barry v. police power. This cannot Court save 369 P.2d 1010 An action founded by straining statute for a constitutional upon wrongful recog- death claim is a interpretation. Only legislature has nized interest. power to amend or correct it. Hern- process state The and federal due bound- West, don v. Idaho defining scope legitimate aries (1964).2 police power exercise of have been drawn as follows: Moreover, public poli- the statute offends landowner/occupier legislature, cy.3 The to a under the broad field of burden created, known,

“police power”, may newly enact concern- con- laws warn of a Compare danger. 1. with See Odar v. Wash.Rev.Code the unobservable or latent (1976), 464, Bank, N.J.Super. the Recreation Use Act for § 4.24.210 Chase Manhatten 138 351 Washington, preserves (1976); the state which owner Michigan Sugar cf. Heider v. A.2d 389 only in three situations: When the en- 490, Co., 375 Mich. 134 N.W.2d 637 kind,” charged trant is a when he is "fee Co., Georgia Ga.App. 126 McGruder v. Power act, injured by intentional and when he sus- 562, (1972), S.E.2d rev’d subnom. Geor 191 305 injuries “by tains reason of a known McGruder, gia Ga. 194 Power Co. v. 229 warning artificial latent condition for Milk, (1972); Washington S.E.2d 440 v. Trend posted.” signs conspicuously have not been Inc., (1970). Ga.App. 121 175 S.E.2d 111 Notably, jurisdictions allowing decisions from Knowles, C., 3.See Wiliam “Landowner’s Liabili- misconduct, liability for have de- intentional ty Com- care, Toward Recreational Users: A Critical only manded a minimal often ment," (Winter 1980). 18 Idaho L. Review 59 sign posted warning requiring that a

873 cealed, dangerous, injuries. man-made To conclude that because the condition an area of known Huyck is mini- recreational use conduct in landowner’s not will- compared mal when to the burden that the Mining Compa- ful or wanton Sunshine family victim or his if face the landowner is ny’s in this case was conduct not willful given immunity cloak of recovery is little sense. The cases makes or wanton is denied. It absurd to a land- immunize factually are distinct. Whether an act reckless, from civil owner depends particu- “willful or wanton” on the wanton or willful conduct which is harmful case, of each and one of circumstances lar prose- to human life result in criminal distinguishing a willful and factors cution. wanton act is such absence of care for the another as exhibits a conscious Assuming, arguendo, that the statute is Dossett v. consequences. indifference merely constitutional and codifies the com- Anderson, Ill.App. 41 N.E.2d 314 376 law, point mon I would out that the trial (1942). injury Whether an is a result of did not address the issue of court whether conduct, although question wanton” conduct is a Sunshine’s unintentional “willful and result, specific injurious jury as to the for the to determine all fact Coe, and wanton. Sufficient the evidence. Trennert v. nonetheless willful 124 N.E.3d presented allegations and affidavits were 79, 83, (1955). Ill.App.2d 4 166 and its resolution is to raise the issue In the civil law the words “willful and fact-finder. The Johnsons’ province of the ordinary negli- wanton” more mean than willful, alleges knowing, complaint State, Lancaster v. gence. 64 S.E.2d active, intentional, negligent creation of a (1951). Ga.App. “Wantoness” 746 trap, hazard or unsafe condition was doing act or omission to do is the of some warn, light breach of the indifference to act with reckless some presence trespass- of recreational known or omission will knowledge that such an act acknowledge ers. The Johnsons that Sun- probably injury; it is not likely or result shine did not act with malice or with the intent, knowledge is crucial but injure, intent to aver nonetheless that but Dethrage, Ala. wantoness. Gunnells the excavation of a road known have (Ala.1979). As re- 366 So.2d widespread recreational use manifested a trespasser to recover spects right of a safety conscious indifference for the oth- act caus- injury ground on the that an ers so as to constitute wanton and willful constituted ing injury to the however, majority, states conduct. conduct”, ill-will is and wanton “willful the Idaho “We need not decide whether conduct. necessary element of wanton exempts acts statute ‘willful or wanton’ R. Ass’n St. v. Terminal McDaniels against trespasser, a landowner Louis, Ill.App. 23 N.E.2d exemption a lack of in the statute whether would be an unconstitutional violation of The essential elements of “willful and process. the defend- due The activities of knowledge wanton misconduct” are excavating ant in the ore from the dike for requiring ordinary situation exercise of processing in its smelter do not rise to diligence injury care and to avert to anoth- of willful or wanton conduct to- the level er; ability resulting to avoid the harm ward recreational users of land. ordinary diligence care and in the use of Huyck Mining supra.” v. Hecla hand; the means at the omission to use (page 273). The majority’s reliance on diligence such care and Huyck, to avert the threat Huyck misplaced. Court danger, motorcyclist, ordinary when to the mind it held that a who collided pro- apparent likely must private road be that the result is a cable stretched across a mine, v. prove Olszewski viding was a disastrous to another. access to property Dibrizio, 194, 195, and not an invitee to whom the 275 N.W. 281 Mich. 423 to refrain from owner owed The most critical element of might cause willful or wanton acts that knowledge, wantoness is and that element need by evidence; BISTLINE, Justice, not be shown direct dissenting separate- rath- er, may appear ly concurring be made and in the showing views of HUNT- LEY, circumstances from which Justice. the fact of knowledge legitimate ais inference. reasons, record, For documented in the my set forth in dissenting opinion in Huyck Willful acts and omissions are conscious Mining Hecla omissions; omissions, acts and acts and (1980), P.2d opinion saw the Court’s possible consequences of which are con- travesty that case as a justice, clear of weighed present sidered and in the perhaps Today the ultimate. the Court’s mind. To be also wanton acts and omis- opinion goes one better. In Huyck the sions, they must be of such character or plaintiff merely injured; in this case done in such manner or under such circum- there was a fatality, the needless death of stances as to indicate that a working man surviving who left him a ordinary intelligence by a activated normal widow and two minor children. and natural concern for the welfare and gain There is by again pointing little to safety might fellow men his who decision, Huyck fallacies of the but a guilty affected them could not be starting point for criticism of the Court’s wholly them unless indifferent to their opinion today is majority some of the lan- probable injurious consequences. affect or guage in the Huyck decision: “We are Kile, 63 P.2d 178 Okl. 576 Kile v. cited to no requires rule of law which (1936).4 possessor owner or of real

place signs indicating thereon its status as private property.” Huyck, 101 Idaho at light pleadings In and affidavits in 300, 612 P.2d at 143. While it be that case, said, this it cannot be as a matter of law,” statute technically is not a “rule of law, alleged that Sunshine’s conduct was it is nevertheless a law. I.C. 36-1603 neither willful nor wanton. This is a mate- specifically provides “signs legibly rial issue of fact. printed painted English in the language warning persons trespass not to thereon” summation, I would hold that a land- any per- makes it “a misdemeanor for occupier, aware of constant and owner son to enter said enclosed land ... trespassers continued use without the consent of the owner.” The property, mini- of the landowner’s owes the forerunner of this act has on been dangers mal to warn of latent created (I.C. 36-2502, repealed books since 1915 Because at his direction. § 36-1603), in 1976 and reenacted as I.C. permit recovery where the land- having application to enclosed lands and intentional, owner’s conduct is willful or land, affording protection owners from the wanton, it state and federal con- violates intrusion of hunters and fishermen. Ab- cepts process due and is therefore un- intruder, placing signs, sent ground, I constitutional. On that would though apparently trespass- nonetheless a reverse. er, subject prosecution. was not to criminal consent, course,

Given he was not a trespasser. With or without consent he However, assuming that the statute does game was not fair for the wanton and exempt intentional, willful or wanton spring-guns willful pits. and concealed All liability, landowners from I would remand this, it, if we didn’t earlier know we for a determination of plead- whether the learned in law school. ings and affidavits were sufficient to raise fact, a material issue of Then, i.e. whether Sun- legislature, by pas- conduct, shine’s given the circumstances of sage of S.B. No. enacted what became case, 36-2502, which, willful and wanton. with little 4. See also W.L. Prosser, Law (4th tion) (1971) Torts Edi- immunity outright liability. from Not to style, continued on as

change other than twenty purpose statement of almost be confused with the 36-1604. now part parcel, pream- in this Court is and fact a years, no case has reached § 36-1604, ble, sought escape to to I.C. is the Title1 of H.B. a land owner has wherein 518, wrongful allegedly ac- No. which on enactment became ch. 95 liability for his own act, A of the statute. Unfortu- of the 1976 Session Laws. broad tions on the basis laws, many, recodifying nately, it will seem to the land Fish and Game its so court, title, right lengthy applicable a to owner has found the Court statute, a which was was: FOR RECREATION- which will construe “PROVIDING purpose in statement of as AL AND LIMITING LAND- declared its TRESPASS being a limitation of liability, to be an LIABILITY.” HOLDER (c)Apply for of landown- who of or liability person persons 36-2503. Limitation any encourage used for the land to be permits of this act is to compensation The purpose er. —1. owners of land land and water to make recreational private purposes. using charge for the land of another for person without 7.Any areas available to public limiting with or without permis- their recreational liability purposes, recreational purposes by damages entering to property, be liable for thereon, any for such sion shall pur- toward persons while on which he incur may livestock or crops poses. § 36-2503, as added by [I.C., act: said property. 2. As used in this (a) 715.] ch. land, roads, water, p. “Land” means private buildings, struc- watercourses, and private ways *> 212:- N.H.Rcv.SULt»55. Compiler's notes. The when at- tures, and or machinery equipment 34. words “this act" would seem 2A:- tached to the realty. to be limited to this section. NJ.Rev.SULAnn. ^ S.U1965, 42A-1. Section 2 of ch. (b) of a fee the possessor “Owner” means McKinney’s Consol. N.Y. provisions reads. “The of interest, tenant, lessee, a or occupant person Istw, *» Laws, Conservation any act are severable. If of the control premises. section, subsection, sentence, 370. N.Car.Gen.StaL, ***»113- (c) provision clause or of this act includes, but is not “Recreational purpose” invalid, 120.5 —113-120.7. is held the remainder following, or combina- to, any limited any Rev.Code, *5*» Page’s Ohio. of the act shall not be affect- fishing, swimming, hunting, boat- tion thereof: ing, camping, picnicking, 1533.18, 1533.18.1. ed." hiking, Ore.Rev.SUL, »»30-790. driv- pleasure Comp. Peering'.* Cal. left. tit. Codes, Code, Pa.Purdon's SUL. Civil 846. 1948, skiing, ing, winter sports, nature water study, i) 1629. Mich.Comp.Laws archaeologi- viewing enjoying historical, or and Ann., (cid:127)»*»51- Tenn.Code when done without scenic, sites, or scientific »?§ cal, Minn.Stat.1961, 801-51-805. 87.01- 1950, * H-654.2. Va.Code charge of the owner. 87.05. WÍS.SUL1963, 29.68. Nev.Rev.StaL, 41.510. land owes no of care to duty 3. An owner of of landown- liability for or use of entry safe 36-1604. Limitation keep premises give (a) of or to any purpose others for warning purposes, Purpose. Statement er. — encourage dangerous owners of land condition, use, struc- is to this section available to or on such water areas ture, premises persons land and activity make private charge

entering for recreational for such without purposes. the public limiting land who either or toward 4. An owner of their liability persons poses by entering charge or without for such permits any purposes. invites thereon indirectly (b) for recreational in this section: to use such As used property Definitions. person water, land, roads, does not thereby: “Land” means private 1. buildings, (a) struc- and watercourses, assurance that premises private ways Extend any when at- tures, for or machinery equipment are safe any purpose. (b) legal realty. such status to the Confer tached person a fee of care means the possessor invitee or licensee to whom 2. “Owner” duty of an lessee, or interest, tenant, occupant person owed. (c) incur of the premises. Assume for or control responsibility includes, but injury caused “Recreational purposes” or for any following combi- or to, any not limited any an act of omission of such persons. fishing, swimming, Hunting, writing, agreed thereof: nation boating, camping, picnicking, 5. Unless otherwise hiking, pleasure deemed applicable of this act shall be provisions skiing, driving, winter water study, nature an owner of land duties and enjoying viewing historical, arche- or sports, ological, or subdivision thereof any leased to the state sites, when done scientific scenic, or recreational purposes. the owner. Nothing construed to: 6. (a) in this act shall be Warning] (c)l Exempt An owner ground from Owner of liability of care or Create care to keep prem- injury of land owes to persons property. for recreational (b) using others ises safe for entry by the land of anoth- Relieve any person warning give obligation or to from any purposes, recreational purposes er for on such structure, activity condition, use, this act to have in the absence of which he entering persons such purposes. in his such land and care in his use of exercise (d)l Liability.! An owner No legal Assumes Owner thereon, consequences activities invites or or indirectly who either directly of land such care. failure to employ provides: 1. Art. 16 of the Idaho Constitution be embraced in an act which shall not be title, expressed act be void Every in the shall "Unity subject act shall title.— subject properly only as to so much thereof as shall not be but one and matters embrace connected therewith, subject shall be embraced in the title.” title; any subject expressed in the but if shall 876 ground to use such permits any person or 1. Create a of care liability injury for recreational property for to or persons property. using an- thereby: 2. the land of any Relieve person obliga- 1. Extend assurance that any from any other for recreational purposes

are safe for have in the absence of this any purpose. tion which he may care in his use of such land legal section to exercise and status 2. Confer upon person legal thereon, in his or from conse- activities licensee to whom a of care of an invitee or such care. or failure to employ quences is owed. who for persons 3. to Apply any person for or incur 3. Assume responsibility liability land to be used for injury compensation permits to caused property for any by recreational omission of such persons. an act of purposes. Damages^ (g)lUser Any person Liable I (e) to Leased Public Land. Provisions Apply using for recreational pur- the land of another writing, agreed in the provi- Unless otherwise shall be liable with or without permission, poses, of this section shall be deemed applicable sions damage property, livestock or crops to for any of an owner of land to the duties and liability said mav Ícause! while on property. which he to state or subdivision thereof leased § § ch. 36-1604, p. as added by purposes. [I.C., 315.] __ (flIOwner Required Keep Land Safe! Not Decring’s Comp.leg.Cal. Nothing this section shall be construed to: in *» Civil Codes. Code. It has provision been said that 1604 Incomplete for the first time. sen- prevention tences, aimed at the decep of fraud and phrases these apparently must have reasonably tion and to notify legislators been inserted into the reenactment § § people legislative and enacting intent in 36-2503 by rep- into 36-1604 someone law. Kerner v. 99 Idaho resenting group thereby some interest who § Hammond 583 P.2d 360 Bing sought expand upon 36-2503. For ham, certain, phrase “owner assumes no lia- bility” goes beyond the sentence —found as Having by laid out side side the 1976 act § § 4(c) d(l) in 36-2503 and 36-1604— act, and the inescapable earlier 1965 it is owner, that an having declares limit- legislators in 1976 the who voted fa- act, liability ed under the thereby “does not vorably doubly were by deceived —first responsibility any injury per- assume title couched in terms of limiting liability, son or caused an act of omis- but then also purpose the statement of persons.” sion of such likewise couched in terms of limiting liabil- end, ity. But that isn’t the because there is plain reading of this section does not yet deception! a third absolve the land owner at all from his own negligence Quite § willful act. the con- may 36-2503 have had laudable trary, any liability it absolves him from goals 1965, although when it became law in might otherwise attach to him there is reason to doubt that it should have having reason of his allowed the use of his been enacted as an amendment to the fish therefore, injured liable law, party cannot in game scope being its far broader pass turn also off the land encourage than to access hunting owner. In that manner it is similar and fishing legislators areas. sup- Those who § compatible 36-2503(7) ported concept and its coun- (including Jus- terpart 36-1604(g). Huntley) unsuspecting tice Without further be- legis- laboring point, justifiably abundantly lators it should be concerned that in passing legislature clear legislature 36-1604 the was de- ceived, merely reenacting intentionally whether the 1965 act. Sec- or uninten- moment, not identi- tionally being tions 36-2503 and 36-1604 are enact- cal, although glance they appear plain aat to be ed 36-1604 into law —a violation of Constitution, and, so. being It will be observed that have circled the Idaho a “sub- stantial, phrases2 plain, four which are found 36- clear and vio- unmistakable” 2. Also circled in § 36-1604 the word “cause” acts —wherein the drafters continued to impose for their ac- which in was "incur." do § This has to on recreational trespassers and "7" in the two “g" with, tions. respectively A indefinite as to be unconstitutional. the nullification” of the lation “warrants J., Bakes, writing statute. for a unani entitled to know beforehand Johnson, supra, mous Court in Kerner v. being regarded as a criminal whether he is at 583 P.2d at 379. trespasser. a recreational trespasser or day, Putting problem aside for another that § far, view, By my in 36- the worst express my amazement that the views grants respite language 1604 is the which a Huntley have failed to command Justice “either to the owner who majority of the Court. indirectly permits” or or invites property for recreational use of his § language is in 36-1604 which There no poses. delving proposition, into this Before properly be said to absolve the defend- can however, that de- it is essential to observe find, liability, jury should a so ant from its complaint answer did not fendant’s to dangerous having in created the situation § Instead, apparent in plead I.C. 36-1604. injuries and resultant which caused the alleged upon Huyck, merely reliance (c) plaintiff’s decedent. Part death of the an affirmative defense that defendant’s § speaks in no to of 36-1604 terms of negligence, any, negli- if is than the less safe, keep premises duty warn or no decedent, gence of the and that decedent condition. As in the used by was a on owned world, accept vehicle it is not difficult to defendant to whom was owed no since taking the use of someone else’s trespassing. Affirmative Defenses he was is,” on an “as warrantless basis. Other II, IV, R., p. III and 20. The defendant’s discussed, already problems than with summary judgment its first motion for was concept having grade roadway, of not a claiming pleading immunity under 36- snow, snags patrol remove pleaded not in a defense which was roadway, present have fallen across Huyck. Knowledge that statute But, difficulty. say that there is within plaintiffs, not have been known to the but properly there language which is candidly it must be observed that com- his and which immunizes the owner for plaint alleged both a recreational use of the non-ex- previously acts create a own roadway question in at the time of the hazard, beyond my ken. The dis- istent thereto, tragedy, prior and the defend- “There is no conten- trict court wrote that knowledge “roadway in ant’s here, sup- the facts tion made nor would by motorcyclists constant use and other inference, the defendant’s port any that users____” recreational act to cause excavation was an intentional strong predicate With that I mention a trespass- injury to the deceased or other constitutionality concern as to the of lan- mind, view, while un- my ers.” To guage place upon owner which does not an correct, point. doubtedly missed the whole obligation directly, posi- some intended to It is not whether the defendant manner, signify open are tive that his lands injure by cutting kill the road- someone purposes. readily for recreational It trench, way whether it was with a but that, cases, many foreseeable whether taking part out foreseeable that owner had or had not elected to the land roadway, erecting either barrier or after-the-fact come under the act will be an warning, injury result in to some would grossly it is determination. On that basis is the law of tort. person. That who, to the recreational user after unfair seem, too, accepts, that if one It would in- trespass, may then be his recreational accept- validity implied of an arguendo, the guilty of a misdemean- formed that he was § 36-1604, land ance owner tres- or under 36-1603 for nonconsensual is, in- “indirectly a land owner who permitted trespasser under pass, or was a locking out tres- vites” 36-1604, has oc- depending on what case, passers, particular the allowed curred, This is at the election. owner’s roadway for recrea- continued use of the uncertainty, and an intolerable state of “indirectly being vague abruptly and tional suggestive hence so terminated” the defendant’s bulldoz- part ripped

er roadway of that out. If

some can “indirectly” action amount to an

invitation, conversely other action can

amount to a withdrawal. At the time that plaintiffs’ decedent into fell the ditch invitation indirect had been withdrawn.

I can way think no clearer to tell the

public they are not free make recre-

ational out of use a road tearing than it, piece

out maiming one or two

people by putting an small invisible cable

across it. closing, simply cannot believe that

there anyone could found the state of equate

Idaho who would non-responsi-

bility existing danger warn of an danger that is man-created. It is ridic- say tearing

ulous to aout section of roadway was a the roadway, “use” of equally say dozing absurd to out engage protect- an activity which is certain,

ed the statute. For it is a far

cry pitching horseshoes birdwatch-

ing. I put am more in mind school bus artifacts,

full of looking children

simply picnicking, bombing ranges on the

used the Mountain Air Home Force No, Any liability? says

Base. the Idaho Court,

Supreme if the owner of the land

indirectly young invited trespassers. NIELSON,

Edward Arthur Claimant-Re-

spondent, Cross-Appellant, Idaho,

STATE of INDUSTRIAL SPE- FUND, INDEMNITY CIAL Defend-

ant-Appellant, Cross-Respondent.

No. 14971.

Supreme Court of Idaho.

June

Case Details

Case Name: Johnson v. Sunshine Min. Co., Inc.

Court Name: Idaho Supreme Court

Date Published: Jun 14, 1984

Citation: 684 P.2d 268

Docket Number: 14786

Court Abbreviation: Idaho